Appeal
from district court, Arapahoe county.
Action
by Mary E. Middaugh against Charles E. Goodale. Judgment for
plaintiff, and defendant appeals. Affirmed.
Appellee
brought suit in the county court against appellant to recover
some 1,600 and odd dollars. The plaintiff was a widow with
several children. The estate left by the husband was
principally a life insurance policy of $5,000, the amount
payable in the state of New York. The defendant was a
resident of Port Jervis, N.Y. Plaintiff formerly lived there
and the parties were acquainted. Defendant, as the agent of
the plaintiff, collected the insurance, came to Denver, and
engaged in business, and at the time of the transactions
hereafter stated had in his possession the money of the
plaintiff, collected on the policy of insurance, not having
paid it over. For a proper understanding of the claim of
plaintiff, the entire amended complaint seems necessary, as
follows:
"The
plaintiff complains of the defendant, and for cause of action
alleges: That the amount in controversy in this cause does
not exceed the sum of two thousand dollars.
That on, to wit, the 3d day of February, A.D.1891, the
defendant called upon the plaintiff at her residence in
Highlands, in the county of Arapahoe and state of Colorado
and importuned and persuaded her to loan to a friend of his
the defendant, by the name of Frank A. Miller, the sum of two
thousand dollars. The plaintiff then and there stated to the
defendant that she did not know, and had never seen or heard
of, the said Miller, and that she had but little money, and
had two children to educate, and that under no circumstances
would she be willing to make a loan of that sum unless it
should be secured by a deed of trust or a mortgage upon real
estate of sufficient value to secure the payment of the same.
The defendant then and there stated to the plaintiff that the
said Frank A. Miller was a man of large wealth, and owned
valuable real estate in Denver, and elsewhere in Colorado
and that he was prompt and reliable in meeting all of his
obligations. The plaintiff renewed the statement to the
defendant that she would not consider any application for a
loan unless the same should be secured by an incumbrance as a
first lien on clear property of sufficient value to insure
the payment of such loan. The defendant then and there
represented to the plaintiff that the said Frank A. Miller
owned three lots on Broadway, in the city of Denver, in the
county of Arapahoe and state of Colorado, which were free and
clear of any incumbrance, and that the least valuable of any
of the three of said lots would readily sell for more than
two thousand dollars in cash, and that he, the defendant,
would be glad of the privilege of purchasing the least
valuable of said lots at the price of two thousand dollars.
That he, the defendant, then and there stated to the
plaintiff that, if she would make a loan of said sum of two
thousand dollars to said Miller, he would procure from said
Miller a deed of trust upon the said three lots, situate upon
Broadway, to secure payment of said sum, and have said deed
of trust executed before delivering the said sum of money to
said Miller. The defendant had with him
then and there the note of said Miller payable to the order
of this plaintiff, which said note is in the words and
figures following, to wit: '$2,000.00. Denver, Colo.,
Feby. 3, 1891. On demand after date I promise to pay, to the
order of Mary E. Middaugh, two thousand dollars, at the
Commercial National Bank of Denver, with interest at eight
per cent. per annum from date until paid. Value received. [
Signed] Frank A. Miller.' That the plaintiff, relying
upon the said representations, and believing the same to be
true, and upon the promises and assurances then and there
made to her by the defendant, that he, the said Miller, did
own the lots upon Broadway, and that the same were of the
value represented by the defendant, and that the said Miller
was possessed of large wealth, and that the defendant would
procure and deliver to her, the plaintiff, a deed of trust,
to be executed by the said Frank A. Miller upon the said
three lots to secure the payment of the said sum of two
thousand dollars. That the said Frank A. Miller did not at
that time,
nor has he since, owned any lots upon Broadway. That the said
Frank A. Miller was not then, nor has he since been, a man of
any wealth or commercial standing; but, on the contrary
thereof, the said Frank A. Miller was then, and ever since
has been, utterly bankrupt, worthless, and insolvent. That
the defendant wholly neglected to procure for or in behalf of
the plaintiff the deed of trust upon the said lots on
Broadway, and wholly neglected to procure for the plaintiff
or in her behalf any other security for the payment of said
sum of money, and, notwithstanding the plaintiff made
frequent demands and requests of both the defendant and the
said Frank A. Miller for the said deed of trust or other
security, all efforts to obtain the same or any security have
been unavailing. That as to what arrangements existed or were
made between the defendant and the said Frank A. Miller with
reference to the commissions which the
defendant was to receive from said Miller for obtaining the
said loan, or as to what distribution was made of the said
sum so obtained from the plaintiff between the defendant and
said Miller, the plaintiff is not informed, and is unable to
state. That the plaintiff made demand of payment of said note
at the Commercial National Bank of Denver, Colorado, and has
made frequent demands upon the said Frank A. Miller and the
defendant for the payment of said note, and has made efforts
to collect the money due upon said note; but all such demands
and efforts have been unavailing, and there still remains due
and unpaid upon the said note the sum of thirteen hundred and
sixty-five dollars and ninety-three cents. That the said
Frank A. Miller is now, and has been for more than two years
last past, absent from the state of Colorado, and for more
than said period has been residing out of the state of
Colorado. That at no time since the execution of the
aforesaid note could a judgment against him have been
collected in Colorado. And the plaintiff further alleges that
the defendant, in obtaining the money aforesaid from the
plaintiff upon the representation that the said Miller owned
the said lots situate upon Broadway as aforesaid, and of the
wealth and commercial standing of the said Frank A. Miller,
and upon the further representation that the defendant would
procure the deed of trust as security for the payment of the
money aforesaid before the delivery of the money to the said
Frank A. Miller as aforesaid, and the default of the
defendant to perform his aforesaid agreement with the
plaintiff, became and was guilty of fraud and willful deceit
in so obtaining the said sum of money from this plaintiff,
and by reason of the promises the defendant became liable to
and is liable in law for the payment of said sum of money to
the plaintiff. That the defendant has never been convicted in
a criminal proceeding for the tort and money complained of
herein by the plaintiff. Wherefore the plaintiff prays
judgment against the defendant for the said
sum of thirteen hundred and sixty-five dollars and
ninety-three cents, besides interest and costs of suit, and
that the plaintiff may have an execution against the body of
him, the defendant, in conformity with the statute in such
case made and provided."
The
amended complaint was filed October 21, 1893. The defendant
answered as follows: "That, the said defendant then and
there having in his possession, as the agent of the
plaintiff, a sum of money exceeding the said sum of $2,000,
of money belonging to the plaintiff, she then and there, in
consequence of the representations aforesaid of the
defendant, and relying upon the same, and believing them to
be true, was thereby induced to and did consent that the
defendant might use the sum of $2,000 thereof in making the
loan aforesaid, to be secured as aforesaid; and the defendant
did use the said sum, and charge the same to the plaintiff in
thereafter accounting with her for the said money of the
plaintiff so in his hands as aforesaid, and delivered the
said note of Frank A. Miller to her in lieu and place of the
said sum in cash. Comes now the said defendant, by Brown &
Smith, his attorneys, and, for answer to the complaint of
plaintiff in the above-entitled cause, denies each and every
allegation therein contained, save and except that the amount
in controversy in this cause does not exceed the sum of
$2,000." A trial was had in the county court, resulting
in a judgment for the plaintiff. An appeal was taken to the
district court, and case tried to a jury in December, 1894.
Verdict for the plaintiff, $1,165.03. Judgment upon the
verdict, and an appeal prosecuted to this court.
T.J.
O'Donnell, W.S. Decker, and Milton Smith, for appellant.
A.S.
Blake and Daniel Sayer, for appellee.
REED,
P.J. (after stating the facts).
A great
deal of testimony was heard upon the trial. The facts of the loan, the taking of the note from Miller
that no security was taken, that Miller was not the owner of
any lots on Broadway, that he was heavily indebted and
verging upon insolvency at the time, that nearly all the real
estate owned by him was heavily incumbered, that he shortly
after became insolvent, and that the amount for which
judgment was obtained was the balance remaining unpaid, were
admitted, or established and uncontroverted. The controversy
was as to what the transaction was as between plaintiff and
defendant,--whether the plaintiff required, as a condition...
